Effects of Discretion on Bias and Discrimination in Family Court
Please oppose SHB 1620. “[J]udicial discretion is the core principle of our judicial system,” claimed Judge Alicia Burton on January 29, 2025, on behalf of the Superior Court Judges Association in her testimony to support HB 1620.
However, judicial discretion is not the core principle of our judicial system. Instead, fairness—treating all parties equally in similar circumstances, regardless of class, race, or sex—is the foundation of justice. Judicial oversight, an equitable appeals process, and protections against unchecked judicial power are essential safeguards. SHB 1620 threatens these protections by undermining RCW 26.09.191’s mandatory safeguards for domestic violence survivors and children, replacing them with guidance that lacks legal enforcement or sufficient avenues for appeal. This is especially scary in family law, as there is no jury, the judge is also the jury, which leaves the survivor susceptible to no oversight of a single judge.
The Impact of SHB 1620 on Child Protection Laws
SHB 1620 significantly weakens RCW 26.09.191’s protective measures. For example under 1620, even if the court in a family law trial finds a parent sexually abused or even raped the child, the court will be able to order that child to the custody of his or her abuser without a professional supervisor. The court is only required to order supervised visitation if they are criminally convicted of sexual abuse. This is alarming, given that only 1-3% of sexual abuse cases result in criminal convictions, and that would likely be supervised anyways because the perpetrator would already be in prison. SHB 1620 eliminates other vital protections for survivors, for example the weakened decision making clause enables the abuser to gain custody further down the road by picking the evaluators who testify at trial, and allows the court to weigh a survivor's DV-induced PTSD as a higher priority than the findings of domestic violence that caused her PTSD.
The Risk to Marginalized Communities
Strangely, even the supporters of this bill have been quoted acknowledging that discretion is one of the problematic factors, “Right now [judicial officers] have almost unrestricted discretion, and that’s leading to outcomes that are different by county, different by who has access to a lawyer, different by maybe sometimes implicit bias against one party.” If discretion is what’s “leading” to these outcomes, why are we increasing discretion? Children from low-income families and communities of color will suffer the most under SHB 1620. Discretion has historically been held as an avenue for racism. Scholar Alpa Parmar highlights this, “The attention towards discretion (rather than race) further allows race to operate without being explicitly named and, therefore, to operate as absent present.” Family court attorneys have advised survivors of color to avoid attending hearings or to keep their cameras off to reduce the risk of discrimination. Discretionary rulings disproportionately harm marginalized communities, as implicit biases often influence judicial decisions.
The Unchecked Use of "Misusing Conflict"
SHB 1620 further allows judges to cut off a parent’s contact with a child under the label of "misusing conflict," which while defined, has no limit to what behaviors it can be attached to. SHB 1620 increases the frequency and severity of the application of this limitation, by allowing judges to use this label to cut off all contact with a parent and child, and to prioritize it higher than domestic violence. This term of “misusing conflict” has been used to punish parents for:
Making a substantiated child abuse allegation later dismissed by family court (Burrill, 2002)
Being suspected of calling Child Protective Services (Devogel, 2022)
Obtaining a protection order against an abusive partner (Rounds, 2018)
This vague criterion disproportionately affects protective parents—especially those from marginalized backgrounds—by providing cover for biased judicial decisions.
Judicial Justifications Are Not Safeguards
Proponents argue that judges must justify deviations from SHB 1620’s “guidance” language. However, requiring a judge to provide written justification offers no real protection. For example, in a case currently under appeal, a judge currently lobbying for SHB 1620 restricted the mother’s residential time under the "misusing conflict" label because the judge didn’t like how "the mother continues to hold beliefs about the father." (Her belief that the other parent was abusive, which was substantiated by prior CPS findings.) The judge proceeded to justify this ruling in over 20 pages pointing the finger at parenting behaviors that would be considered normal outside of family court. Her appeal remains at risk of being rendered moot if SHB 1620 passes.
The survivor network advocating against this bill includes individuals who have had cases before judges identified as lobbying for SHB 1620. Many of these survivors have been silenced, reprimanded, and their children placed in the custody of abusive parents. While these judges may not be intentionally biased, abusers often manipulate family court proceedings, leveraging the discretionary nature of the system to their advantage.
SHB 1620 Removes Crucial Safeguards for Vulnerable Children
Judges already possess discretion to make exceptions in extraordinary circumstances. SHB 1620 eliminates the remaining safeguards in RCW 26.09.191 that protect children—safeguards disproportionately relied upon by poor and minority families. Under current law, all children, regardless of their socioeconomic status or race, receive equal protection. Low income Black children deserve the same legal protections as wealthy white children. SHB 1620 hands unchecked power to judges, allowing them to disregard the law at their discretion.
We urge lawmakers to oppose SHB 1620 and preserve the mandatory protections that ensure the safety and well-being of Washington’s children.
Thank you,
Survivors of Family Court
Studies cited:
Parmar A (2021) The Power of Racialized Discretion in Police Migration. International Journal for Crime, Justice and Social Democracy. 10(3): 41-55. https://doi.org/10.5204/ijcjsd.2040 University of Oxford, United Kingdom. Also see: Nembhard, Susan and Robin, Lily (2021) Racial and Ethnic Disparities throughout the Criminal Legal System: A result of Rcist Policies and DIscretionary Practices. https://www.urban.org/sites/default/files/publication/104687/racial-and-ethnic-disparities-throughout-the-criminal-legal-system.pdf “[D]iscretion given to individual system actors at each decision point in the system creates opportunities for racial biases…. Biases are particularly apparent when looking at disparities in officers’ discretionary actions”
False information from WSCADV
Quote from bill sponsor: https://www.investigatewest.org/investigatewest-reports/washington-bill-aims-to-give-judges-more-guidance-in-high-conflict-custody-cases-17819627
